Mitchell v. Ballard
Filing
14
MEMORANDUM OPINION AND ORDER: Based upon the foregoing discussion, it is ORDERED that the findings made in the 8 Proposed Findings and Recommendations by Magistrate Judge be, and they hereby, are adopted by the court; and the Section 2254 petition, and this action be, and they hereby are dismissed without prejudice. Signed by Judge John T. Copenhaver, Jr. on 9/24/2012. (cc: USMJ Stanley; attys; any unrepresented party) (msa)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
RODGER D. MITCHELL,
Petitioner,
Civil Action No.: 2:12-2149
v.
DAVID R. BALLARD, Warden,
Mount Olive Correctional Complex,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending is a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, filed June 14, 2012.
This action was previously referred to Mary E.
Stanley, United States Magistrate Judge, who, on July 12, 2012,
submitted her Proposed Findings and Recommendation pursuant to
the provisions of 28 U.S.C. § 636(b)(1)(B).
The magistrate
judge recommends that the petition be dismissed without
prejudice inasmuch as petitioner has not exhausted his state
remedies.
On July 20, 2012, the court received petitioner's
objections.
The objections demonstrate petitioner has failed to
exhaust his state court remedies.
It does not appear that his
further attempts to exhaust would be futile.
He is thus
required to pursue the final adjudication of his state habeas
claims prior to seeking relief in this court pursuant to section
2254.
The objections are not meritorious.
Based upon the foregoing discussion, it is ORDERED
that:
1.
The findings made in the Proposed Findings and
Recommendation of the magistrate judge be, and they
hereby are, adopted by the court; and
2.
The section 2254 petition, and this action, be, and
they hereby are, dismissed without prejudice.
The Clerk is directed to forward copies of this
written opinion and order to all counsel of record, any
unrepresented parties, and the magistrate judge.
DATED: September 24, 2012
John T. Copenhaver, Jr.
United States District Judge
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